CAAF decided United States v. Jasper, No. 13-0013/AR, 72 M.J. 276 (CAAFlog case page) (link to slip op.), on June 4, 2013, finding that the trial judge erred when he prohibited the Defense from introducing statements made by the child victim to her pastor concerning her allegations that the Appellant sexually abused her, after the trial judge concluded that the victim did not waive the clergy privilege despite both her and her mother giving the pastor permission to disclose the statements to the trial counsel. CAAF reverses the Army CCA and sets aside the findings and sentence, and authorizes a rehearing.

Judge Ryan writes for a unanimous court.

The Appellant was convicted contrary to his pleas, by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, in violation of Articles 120 and 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge.

The convictions are all related to sexual conduct between the Appellant and his stepdaughter [BK], alleged to have occurred in 2006-2007, and then again in 2009. Prior to trial, the Trial Counsel notified the Defense that BK’s pastor had disclosed (with the permission of both BK and her mother AJ), to the Trial Counsel, that in 2007 BK told the pastor that she had fabricated the earlier allegations to get attention. The Defense then sought to call the pastor at trial to testify about this admission, but BK and AJ asserted the clergy privilege (having been advised by the Trial Counsel that they could do so).

The Defense asserted that the privilege was waived when the pastor was authorized to disclose the communications to the Trial Counsel. But the military judge found no waiver and applied the privilege to prevent the testimony of the pastor or any examination regarding the statements made to the pastor. BK and AJ then testified at trial, constituting the principle evidence against the Appellant, and the Trial Counsel argued in closing that BK was credible, saying:

“you can’t make [BK’s testimony] up,” “the kinds of details [that BK recalled] that if you’re making something up, just don’t come out,” and “[i]t went down just the way she explained it.”

The Appellant was convicted, contrary to his pleas by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct in violation of Article 120, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, all in violation of Article 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge. The Army CCA affirmed.

Judge Ryan writes for a unanimous court. The trial judge ruled that the “putative child victim” did not waive the privilege for communications she made to her pastor concerning her allegations against Appellant that he sexually abused her (including a statement that “she had made it all up . . . to get attention”), despite both the victim and her mother giving the pastor permission to disclose the statements to the trial counsel, and pastor actually disclosing the statements. CAAF finds that the determination that the privilege was not waived was erroneous.

Here, there is no question that both BK and her guardian, AJ, affirmatively consented to Pastor Ellyson’s disclosure of the statements to trial counsel. Under such circumstances, and for the reasons below, we think that it would be inappropriate to allow the claim of privilege to prevent defense counsel from using BK’s statements at trial.

Slip op. at 9 (marks omitted).

CAAF also finds that this error was constitutional in nature, as it deprived the Appellant of the opportunity for effective cross-examination, and that it was not harmless.

There is little question that in cases such as these, the credibility of the putative victim is of paramount importance, and that a statement by that person that she had made up some or all of the allegations to get attention might cause members to have a significantly different view of her credibility.

Slip op. at 14.

The ACCA is reversed and the findings and sentence are set aside, with a rehearing authorized. Further analysis to follow.

CAAF granted review of three cases today — two Army and one Marine Corps.

In United States v. Jasper, No. 13-0013/AR, CAAF granted review of four issues — including an issue (Issue IV) that played a role in the Salyer case: the cutoff age for child pornography under military law.

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST APPELLANT.

II. WHETHER THE ARMY COURT ERRED WHEN IT CREATED A CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.

III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO NOTICE.

IV. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.

IN UNITED STATES v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING THE EXISTENCE OF LESSER-INCLUDED OFFENSES. MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE NEGLIGENCE. UNDER JONES, IS INVOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY MANSLAUGHTER?

Finally, in United States v. Bennitt, No. 12-0616/AR, CAAF specified an addititional issue:

In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King. Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

We previously discussed the issue that CAAF granted in Bennitt on 19 September 2012. An interesting aspect of Bennitt is that the specified issue uses a deep issue-like format.

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